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Judgment
Anand Byrareddy, J.—Heard the Counsel for the parties.
The fads of the case are as follows:-The petitioner was enrolled in the Army on 28.2.1991. Alter completion of training, the petitioner is slated to have been posted to 16 Engineer Regiment. It is his contention that he was medically and physically fit before he was selected to the army. He continued to maintain medical category "AYE", which is the highest medical fitness at all limes till September 1995. At that point of time when he reported to his Regiment Medical Inspection Room with a headache, the petitioner was referred to the Army Hospital, Delhi Cantonment. After routine tests, the petitioner was diagnosed as a case of "Head injury effects of V6-7" and was placed in medical category CEE (temporary) for a period of twelve weeks with effect from 24.11.1995, in terms of Annexure-"A" to the writ petition. This was pursuant to an opinion by the Medical Board held on 24/11/1995 at the Military Hospital, Ambala Cantonment. This in turn was based on the opinion of a Specialist Neuro Physician of the Army Hospital, Delhi Cantonment.
It is the contention of the petitioner that the medical authorities had not detected any serious ailment. There was no physical defects and EEG was found to be normal. As per the recommendation of the Specialist Neuro Physician, the petitioner was entitled for monthly reviews in Neuro Centres. In terms of the opinion of the medical board held at Military Hospital, Ambala, on 24.11.1995, there was specific restrictions regarding employment of the petitioner as per Army Order 146 of 1977.
It is the petitioner''s case that in contravention of these recommendations, he was sent on an Exercise at Suratgarh. This entailed the petitioner undergoing practice and tests for the battle preparedness of units and formations under simulated battle conditions. It is an arduous task under which the petitions was placed. He ought not to have been prescribed such tasks when he was placed below medical category-A. This was especially so when the petitioner was exposed to the risk of strain and rigour. The petitioner was again placed before the Medical Authorities on 18.6.1996 at the Army Hospital, Delhi Cantonment. The Specialist Neuro Physician at the Army Hospital, Delhi Cantonment, recommended further tests on the petitioner and found (hat there was a disablement of 40%, which could not be attributed to his duties, but, apparently on account of the injury sustained when he was on leave. Based on the said recommendations, die Medical Board discharged the petitioner on 24.8.1996. It is this, which is under, challenge.
The counsel for the petitioner would submit that the petitioner had come on annual leave to Bangalore, which is the petitioner''s hometown and spent the leave at Bangalore between the period 10.4.1995 to 29.5.1995. It is also slated that the petitioner had suffered a fall while he was on leave at Bangalore and did hot suffer any serious injury and he had ignored the same. However, it is only after completion of leave, when he suffered a headache, he offered himself for examination as slated herein above. The injury, if any, which was the possible cause for the head ache, for which he was examined by the Medical Authorities of the respondents and having been placed in Medical Category CEE (Temporary) and the petitioner having been exposed to rigorous military exercises as slated herein above had lead to further deterioration of his condition and certainly contributed 10 the disability he harboured when he was further examined by the Medical Authorities on 18.6.1996. Hence, the opinion expressed that the disability was not attributed to military service and that it is possibly on account of the injury he had suffered in the year 1995 is therefore a surmise, which was not on the basis of any material evidence or other investigations. This opinion has been acted upon in having discharged the petitioner from service on 24.8.1996, which is arbitrary. The opinion of the authorities was not been based on any medical analysis. But it is only on the basis of casual guess work, which has been acted upon by the medical authorities, namely, the petitioner''s remark that he had suffered an injury while he was on leave in the year 1995.
At the lime of release, the petitioner was granted a sum of Rs. 16,160/- being the invalidation gratuity/DCRG sanctioned by CCDA(Pensions) Allahabad. The same was communicated to the petitioner by letter dated 25.6.1999. The deliberations at the stage of granting the said amount would establish that the petitioner was considered for attributability pensions, but the same was rejected, without assigning any valid reasons. The petitioner while being medically boarded out was not provided the medical documents or the grounds on which the said decision was taken. The petitioner however was given an option of preferring an appeal against the decision of the pension authorities. The petitioner did file an appeal to the Secretary, Government of India through a proper channel as per Annexure-"G" to reconsider the discharge of the petitioner and to enable the petitioner to continue in service. This appeal has not been considered by the Competent Authority. To add insult to injury, the second respondent who was approached with a prayer to enroll him as an Ex-Serviceman was also rejected on the ground that the petitioner is not a pensioner. It is in this background that the petitioner had issued a legal notice dated 28.2.2001. It is now contended that the petitioner is medically fit and is ready to rejoin the army. The medical illness certificate issued by the competent Medical Officer attached to a reputed Hospital is produced at Annexure-"L" and the competent authorities not having considered his prayer the petitioner is before this Court and it is prayed that having regard to the above circumstances, the petitioner''s prayer be allowed.
On the other hand, Shri Aravind Kumar, appearing for respondents would submit as follows.
The petitioner was enrolled in the Army in the Madras Engineer Group and Centre as on 28.2.1991. After completion of his training, he was posted to 16 Engineer Regiment with effect from 26.4.1993. The petitioner was admitted to the Military Hospital, Ambala on 30.10.1995. He was examined by a Neuro Physician and was diagnosed with the alter effects of a head injury. He was placed in Low Medical Category CEE (Temporary) for six months with effect from 24th November, 1995. On review and detailed examination by a graded Medical Specialist of the Army Hospital, Delhi, the petitioner was found to have developed secondary somatisation features on account of the head injury he may have suffered during his annual leave. A duly constituted Medical Board recommended the petitioner to be in Low Medical Category EEE (Physical) Permanent and invalidated him from service as he was not fit to be a soldier. This opinion was approved by the Deputy Director of Medical Services on 5.8.1996 and was duly invalidated out of service with effect from 25.8.1996. The contention of the petitioner that the Medical authorities had not detected any serious ailment in the first instance is incorrect. It is also slated that upon the petitioner being placed in the Low Medical Category CEE (Temporary), as on 24.11.1995, whether he had participated in exercises at Suratgarh cannot be ascertained at this belated stage. In any event, personnel placed in Temporary Low Category are bound to perform all the mandatory duties of Military Service.
As admitted by the petitioner, he had sustained a head injury when he was on an annual leave from 10 April 1995 to 29 May 1995 and the disability that has occasioned has correctly been viewed as not being attributable to Military Service by the competent Pension Sanctioning Authority.
Insofar as the petitioner''s claim for disability pension is concerned, the same has been rejected, as any such disability cannot be attributed to Military Service and the rejection is in accordance with the Regulations and an appeal filed by the petitioner has been considered on its merit and has been dismissed. In any event, the petitioner has been paid all terminal dues lo which he was entitled such as, Invalid Gratuity, Death-cum Retirement Gratuity, Individual Running Ledger Account Balance, Aimed Forces Personnel Provident Fund Balance, and Disability benefits cover under Army Group Insurance Fund, in totally amounting lo Rs. 81,457/- and since he is unlit for Military Service, he cannot be reinstated into service. His discharge in neither illegal nor arbitrary.
By way of reply, the Counsel for the petitioner would submit that the glaring circumstance that the petitioner was not provided with medical documents, on the looting that they are confidential documents would require that the Annexures produced alongwith the writ petition which are not disputed by the respondents are the only documents available which would sustain the petitioner''s case. The Annexure at Page 43 contains the nothings of the Minutes of the Office of the Chief Controller of Defence Accounts: As per Note-2 of the Minutes at Page 43, it is stated as follows:
Medical Board has opined that ID aggravated due to MS
Hence, the opinion expressed by the Pension Sanctioning Authority that he was disentitled for pension as his condition could not be attributed to Military Service is incorrect and contrary to the material on record. The direct contribution for such aggravation was the circumstance that though he was placed under Low Medical Category, EEE (Temporary) for a period of six months, he was compelled to undergo rigorous military exercises for battle preparedness, which had aggravated and lead to the disability which the petitioner suffers This not having been denied, either in the statement of objections or in the course of arguments and on the other hand, pleading an inability to produce records, to demonstrate that the petitioner was not, in fact, assigned any such rigorous exercises, which aggravated his condition, the petition would have to be allowed on that count alone.
It is also significant that even according to. the statement of objections at Para 9, it is admitted that the concerned authority responsible for recommending award of pension to the petitioner has duly recommended the same which had been rejected by the Chief Controller of Defence Accounts on an opinion, which is contrary to the decision of the Medical Board and therefore, has resulted in injustice.
The counsel places reliance on a judgment of the Delhi High Court to contend that she Rules ought to be liberally viewed while deciding cases of the personnel of the Armed Forces.
Shri Aravind Kumar, thereafter, sought time to make a further effort to secure documents pertaining to the period when the petitioner was said to have been compelled to undergo rigorous military exercises which aggravated his condition when, in feet, he was not assigned any such duties. And ultimately, he has filed an affidavit dated 1.6.2009, of the Commanding Officer of the petitioner''s Regiment, without any supporting documents denying the claim of the petitioner that he was compelled to undergo the said exercise.
The petitioner has filed objections to the said affidavit and would further emphasize the fact that from the material placed on record, the claim of the petitioner has been treated in a cryptic and casual manner, an is evident from page nos.43 and 44 of the writ petition According to Note No. 2 on page No. 43, there is a remark to the effect that the Medical Board opined the invalidating disease "ID aggravated due to military service (MS).". An advice was sought from the Medical Advisor (Pension)-(MAP) andNote-3 records that (he officer has opined that it was an administrative mailer, Note-4 cryptically indicates "ID rejected". Therefore, on the basis of the notings and the final decision of the Chief Controller of Defence Accounts, there is clear deviation from the rules and regulations on the sanction of disability benefit since the sanctioning authority has not bused its decision on the recommendations of the Medical Advisor (pension).
Given the above facts and circumstances, the petitioner''s contention that though he had suffered a Ml when he was on annual leave, he had not suffered any serious injury and since he was diagnosed with after effects in November 1995, and having been advised not to undergo rigorous physical activity and inspite of the same, the petitioner being put through such activity and his condition having aggravated, on account of the spare, it will have to be attributed to Military Service is sought to be negated, by denying that he was, in fact, required to undergo any such rigorous activity against medical advice at the instance of the respondents. This denial has not been substantiated, on the other hand, it is staled in the statement of objections that the respondent would not be in a position to trace material in support of that contention at all. And the affidavit of the Commanding Officer of (he petitioner''s Regiment dated 1.6.2009, categorically slating that he was exempted from military training and parade during the relevant period and therefore, the petitioner''s disability could not attributed to military service is not supported by any material and it is not clear as to how the authority has been able to categorically make the statements in the affidavit without reference to records. Therefore, it cannot be said that the petitioner is making a false and untenable claim.
Hence, the petition deserves to be allowed and is accordingly allowed. Annexure-H is quashed. It is to be held that the petitioner''s disability is attributable to Military Service and he is entitled to disability pension from the date of discharge. The respondent No. 2 shall further consider the petitioner''s candidature for any suitable civil employment under the ex-servicemen quota, provided the petitioner qualifies for such a position. The respondent shall comply with this order with expedition.